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Level playing field? Coal miners, environmentalists wrangle over hearing costs

Alberta allows citizens appearing before regulators to have costs reimbursed by project proponents
A section of the eastern slopes of the Canadian Rockies is seen west of Cochrane, Alta., Thursday, June 17, 2021.THE CANADIAN PRESS/Jeff McIntosh

The battle over a coal mine in Alberta’s southern Rocky Mountains continues to rage six months after the Grassy Mountain project was denied, as the company and its opponents wrangle over who pays costs for the hearing that turned the proposal down.

Benga Mining, on the hook for the costs, wants them trimmed drastically and claims some groups owe the company money.

Environmental groups say their costs finance essential public debate and add Benga’s aggressive response makes it harder for those who question the claims of resource companies.

“Benga’s attempt to impugn the motives of … public interest interveners is wholly inaccurate, unfair and sets (a) nasty and confrontational tone,” says a letter from the Timberwolf Conservation Society to the Alberta Energy Regulator, which rules on which costs Benga must pay.

Alberta law allows citizens appearing before regulators to apply to have their costs reimbursed by project proponents. The law is intended to make those who benefit from development pay the expense of ensuring it’s done right.

In June, the regulator denied Benga Mining’s application for the Grassy Mountain mine in Alberta’s Crowsnest Pass, a rare refusal later echoed by the federal government, which was also involved in the review. Benga has appealed that decision.

Four environmental groups, a municipality, a First Nation and an individual have applied for a total of $1.3 million to try to recoup the costs of expert testimony, legal advice and research, the regulator says.

But Benga has the right to question the claims and is doing so. In a letter from lawyer Martin Ignasiak, the company suggests that those groups weren’t constructive.

“Benga views the (assessment) procedure, and the (regulator’s) costs regime, as processes intended to compliment (sic) a system that promotes collaborative efforts and constructive input, rather than one that encourages persistent intervention in opposition to any form of development,” it says.

Benga says the groups are well-funded and used the Grassy hearings to raise more money. It throws doubt on the billings of lawyers and the value of reports filed by biologists, hydrologists and other environmental scientists. It points out some groups also received federal participant funding.

It asks the regulator to reduce the a claim from Livingstone Landowners Group — a coalition of local ranchers and landowners — by 61 per cent, to $150,000. It says the application from Timberwolf Conservation Society should be reduced 91 per cent to $8,200. It wants a claim from the Canadian Parks and Wilderness Society cut by 99 per cent, to $1,100.

Benga argues it shouldn’t be charged for any of the Rural Municipality of Ranchlands’ $185,000 claim. And its letter says, when advance funds granted to the Alberta Wilderness Association are taken into account, the group should pay the company back $2,300.

Ignasiak did not respond to a request for comment on his letter.

Normally, the regulator makes a decision on costs in about 90 days. Applicants in the Grassy Mountain hearing were still waiting after 250 days.

Delays make it harder for citizens to hire the expertise they need to study proposals, said Norma Dougall of the Livingstone landowners.

“The reimbursement program is designed to level the playing field, allowing small organizations like ours to participate in the hearing process vs. the large multinationals,” she wrote in an email.

Other coal mine hearings are coming, she said.

“Our experts and lawyers need to get paid for their work and will be reluctant to engage with us again if they are not reimbursed.”

Mike Sawyer, who appeared on behalf of Timberwolf, said delays and discounts on participant funding create an imbalance at public hearings.

“It creates a real disincentive for any professional to actually work for a member of the public because they know they’re going to get screwed and they’re going to have to wait for months before they get paid.”

University of Calgary law professor Shaun Fluker, who has studied the regulator’s history on cost awards, found that between 2004 and 2014 the Alberta Energy Regulator granted about 70 per cent of what was asked. Not all applicants were equal, he found.

“The amount that that cost claim was reduced by the regulator was significantly higher for folks I characterized as environmental scientists as opposed to an engineering report,” he said.

Environmental scientists received about 60 per cent of what they asked for, Fluker found. Lawyers and engineers both got more than 80 per cent. Lawyers were the single largest expense, by far.

Alberta Energy Regulator spokeswoman Ottilie Coldbeck said in an email the Grassy Mountain hearings were unusually complex and it wasn’t possible to meet the 90-day guideline.

“We do not know when a decision on the cost claims will be issued on the Benga Grassy Mountain hearing,” she wrote.

—Bob Weber, The Canadian Press

RELATED: Panel says Grassy Mountain coal mine in Alberta Rockies not in public interest